theadanews.com - Ada, Oklahoma

February 5, 2014

Water law: the good, the bad, the potentially ugly

Guy Sewell Guest Writer
www.theadanews.com

Ada — I believe most of us would agree that running out of water, whether as individuals or communities, would be a big problem. However it is not something we spend a lot of time worrying about. That might be part of the problem. Water is a renewable natural resource, but our ever-increasing population is beginning to create stress on water availability in many parts of the country. 

Historically, civilizations have used two solutions to manage or “allocate” water resources, government regulation or individual ownership. Traditionally both approaches are thought to be economically sound. Another way to say this is that both approaches will, if appropriately applied, lead to sustainable access to the water resource, and prevent its overuse and/or destruction. In Oklahoma, as with many western states, we have chosen a combination of the approaches, treating surface water as a state regulated and allocated public property, and ground water as individually owned private property right. For most of the States recent history these two legal frameworks have worked well together. This is good.

However, the current set laws do create a potential problem. To explain this we need to discuss a little hydrology.  In Oklahoma, our streams and rivers represent low points both in the local topography and in the water table.  The result is ground water discharges into the rivers and creates what are called influent, or gaining streams. So for most of the time during the year, the water we see in rivers and streams is primarily ground water that has discharged to the streambed. Not rain water or runoff.  This condition is called baseflow.  

The concept of baseflow is a very important lesson for those concerned with water management and has several important implications. One is that, a pumping well placed near the river can impact the flow of ground water into the river by altering the local water table (potentiometric surface), and can, if enough water is extracted, cause surface water to move from the river into the local surficial aquifer, creating a localized effluent or losing stream.  Conversely significant withdrawals from rivers could lower local water table and impact nearby wells.  Our water laws do not recognize these potential problems and leave no legal or regulatory recourse for impacted towns or individuals.  

This is sort of like trying to manage your checking account when someone you don’t know has access to your bankcard. This is bad.

For most of the state’s recent history these two legal frameworks have worked well together. If there is excess water or low demand, the two systems of water rights are compatible. The problem is when water supplies are most limited, during dry seasons or drought years, the water in the streams and rivers is almost exclusively baseflow.  So when the allocation systems are most critically needed, the chance for conflict between them is the greatest. Increasing demand due to population growth, or changes in rainfall patterns, could make the chance for conflict much, much greater. This could get ugly.

If the un-recognized interactions of these two forms of water resources outside of their allocation systems (water laws) is significant source of potential problems, which can limits their efficient management under the current Oklahoma system of laws, what should we do? Interestingly enough, we here in Ada have had a ringside seat to the state’s first attempt to recognize legally, the scientific reality of ground water/surface water interactions.  Some states have implemented what are called “conjunctive management” polices that attempt to capture the impacts of ground water-surface water interactions 

Oklahoma passed legislation in Senate Bill 288, which for the first time recognizes the impact of ground water-pumping on streams and rivers. The law is limited in scope; it only applies to the Arbuckle-Simpson aquifer, and it does not use the term conjunctive management. The law and the developing associated regulations are controversial, and still subject to legal and legislative challenges.  

But it is a good first step in bringing the current surface water and ground laws into harmony with the science and each other. It is also very good for protecting South Central Oklahoma’s water resources.

I often hear that Oklahoma’s current water allocation systems have worked well, which is true, and that we don’t really need to change anything.  I suggest that we remember that water allocation is much easier when there is plenty of water.  The comparatively less-complex system of Riparian Rights used in the water rich eastern United States is a good example.  In parts of Oklahoma we are facing a situation where we have static or decreasing annual water resources, and increasing water demand from both inside and outside the state’s borders.  

We should take the baseflow lesson to heart and apply it to all the state’s water resources.  

We should also be prepared to face the reality that the management of Oklahoma’s water resources will be the most complex, and the most needed, when water is in the most demand and least available.

(Guy Sewell, Ph.D., is an Ada city councilman and professor of Environmental Health Sciences at East Central University.)